Russo v. Charles I. Hosmer, Inc.
| Decision Date | 27 October 1942 |
| Citation | 312 Mass. 231,44 N.E.2d 641 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | NICHOLAS RUSSO & others v. CHARLES I. HOSMER, INC. |
September 16, 1942.
Present: FIELD, C.
J., QUA, DOLAN COX, & RONAN, JJ.
Contract Performance and breach, Construction, Waiver, Building contract, Implied contract, Subcontract. Waiver.
Unjustifiable and intentional deviation by a subcontractor from a contract for construction of a highway fence, by furnishing about fifteen hundred cement posts reinforced by two or three steel rods instead of posts reinforced by four rods, was material and prevented his recovery, either in an action upon the contract or upon a quantum meruit, of a balance alleged to be due him for the posts installed.
Acceptance by the Commonwealth of certain items on a public work as if performed, and payment to the general contractor therefor without knowledge by either the Commonwealth or the contractor that a subcontractor who had undertaken their performance had failed to perform properly, did not show a waiver by the contractor of such failure nor preclude his relying thereon in defence to an action by the subcontractor against him either upon his contract or upon a quantum meruit.
A subcontractor upon public construction work for the Commonwealth had no right to recover for an extra for work stated in his contract to be included in the unit prices therein provided for although the contract between the Commonwealth and the general contractor was amended so as to permit the general contractor to receive payment from the Commonwealth for such work.
The mere facts that a general contractor with the Commonwealth sublet part of the work without securing the consent of the department of public works as required by his contract, and that he was paid by the
Commonwealth a certain amount for such work, did not entitle the subcontractor to recover such amount from the general contractor as money had and received to the subcontractor's use.
CONTRACT. Writ in the District Court of Franklin dated February 12, 1940.
On removal to the Superior Court, the action was heard by Leary, J., upon a report of an auditor whose findings of fact were to be final.
C. Fairhurst, for the defendant.
J. T. Bartlett, (H.
H. Flower with him,) for the plaintiffs.
The defendant, hereafter called Hosmer entered into a contract with the Commonwealth to repair a section of a State highway which had been damaged by the hurricane and flood of September, 1938. Hosmer by a contract in writing sublet to the plaintiffs, hereafter called Russo a portion of the work, which consisted of the erection of highway guard railing at specified prices for certain types of rails. The first count of the declaration is on the written contract. The second count is upon a quantum meruit for materials furnished and labor performed. The third count is for money had and received for extras. The fourth count is also for money had and received -- the amount that Hosmer received from the Commonwealth for the work done by Russo. An auditor, whose findings of fact were to be final, has found that Russo had erected a certain number of feet of a particular type of fence, together with sixty-seven anchors for fastening the ends of the two cables that pass through the cement posts and comprise this type of fence, and awarded Russo the balance due after crediting him at the contract prices for this work and deducting the payments made on account by Hosmer. He also made alternative findings, one of which was an extra amounting to $41.20 for removal of ledge. The judge made a finding for Russo in an amount which would seem to indicate that it was based upon the said balance and the said extra together with interest. The defendant appealed from a finding for the plaintiff.
The report of the auditor constitutes a case stated, and an appeal from the finding for the plaintiffs, which we consider as an order for judgment, properly brings the case here. Pesce v. Brecher, 302 Mass. 211 . Lawrence v. Old Silver Beach, Inc. 303 Mass. 377 . Old Mill Point Club, Inc. v. Paine, 308 Mass. 505 .
Russo cannot recover upon the first count upon the written contract without showing complete performance in strict accordance with its terms, Searls v. Loring, 275 Mass. 403; Zarthar v. Saliba, 282 Mass. 558 , and he cannot maintain the second count for quantum meruit for the fair and reasonable value of the materials furnished and labor supplied in executing the written contract without showing that he has substantially performed the contract and also that he attempted in good faith fully to perform the contract. An intentional departure from the terms of the contract without justification or excuse in matters other than those so trifling as to be properly regarded as falling within the rule of de minimis will bar all recovery for materials supplied and work performed which were required for the performance of the contract. Bowen v. Kimbell, 203 Mass. 364 . Smedley v. Walden, 246 Mass. 393 . Divito v. Uto, 253 Mass. 239 . Hub Construction Co. v. Dudley Wood Works Co. 274 Mass. 493 . Glazer v. Schwartz, 276 Mass. 54 . Andre v. Maguire, 305 Mass. 515 .
The auditor found that the construction of the highway guard rail or fence required the installation of fifteen hundred five posts made of concrete reinforced by four rods, and that the posts that Russo manufactured and supplied contained only two or three steel rods. Twelve of these posts were tested after they had been erected by Russo and were found to contain two rods. They were replaced by Russo by posts that were reinforced by four rods. Neither the defendant nor the department of public works had any actual knowledge that the remaining posts had less than four rods each. One...
To continue reading
Request your trial